When Privacy Perishes from a
Place Inside:

The Right to Privacy in a
World with Advanced Implant Technology

Francesca Cedor

3405.984.357.4999 found.Identification:Gary
James Feldmen.Sex:Male.Date of Birth: 06/21/2190.Height:5'10".Weight: 210 pounds.Address:251 W. Green Street.Westwinfield, NY.Location at 03:50am
11/05/2220:Walking towards Vic's Waffle House
with gun and large bag.Brain activity/Stream of Consciousness:"can't get caught...they won't get me...freezing out here, they're probably all asleep...at least they have a place to sleep...so cold...the money will do me
good...just can't get caught"Conclusion:Robbery attempt in progress.

It's
difficult to imagine living in a world where a single person can target and
monitor everybody else's location, second by second conduct, and even the
thoughts they have "hidden" in their brains.Perhaps not.Baby monitors already allow
parents to listen in on their napping toddlers from across the house.Web surfers might remember the DotComGuy
craze in 2000, where anybody with an internet connection could view live web
cameras to see a complete stranger's second by second activities.[1]Finally, hypnotists can delve into
clients' minds to uncover past thoughts and feelings, while lie detector
machines can somewhat accurately determine whether or not a person states the
truth.The latter two examples
involve situations where the observed person most likely gives consent to be
observed by the other person.For
example, clients voluntarily seek help from hypnotists because they want to
solve a problem they are experiencing.Likewise, DotComGuy willingly agreed to broadcast a year of his life to
the entire world for almost $100,000.[2]Therefore, it may be more accurate to
propose that persons who enjoy privacy rights would not want to imagine, much
less live in, a world where they would suffer a complete loss of privacy without
having given their consent.

The
following account discusses various forms of surveillance, and explores the
likelihood of implant technology that would allow individuals to locate and
identify other persons, read their minds, and perhaps even change their
conduct.Subsequently, this paper
raises both the positive and negative consequences associated with implant
technologyFinally, the
analysis will focus more intently on the future of the right to privacy in a
world of such technology.

Surveillance: When Did I Agree to This?

Wire-tapping, video surveillance, and email monitoring are just a few
methods of surveillance used by both governmental and private organizations to
"'keep us in line,' monitor our performance, gather knowledge or evidence about
us, assess deviations, and, if necessary, exact penalties."[3]Here, individuals feel much like
the toddler monitored by her parents.The toddler certainly doesn't give her parents consent to listen to her
every twitch and giggle.However,
one might argue that the toddler doesn't mind because she is probably not aware
of the monitoring device.Another
possible argument is that an implied consent exists because she's not yet old
enough to understand what the monitor does, and that she would consent if she
knew that the monitor contributed to her health and
safety.

Moreover, there is something special
about the relationship between parent and child that would override the need for
the toddler's consent.Most parents
care for their children and want to make sure that they are healthy and
happy.A monitoring device helps
parents determine when their child is resting or playing peacefully, when he or she
is fussing, and when something goes wrong.Since the monitor is like a
walkie-talkie, parents are free to attend to other activities in different rooms
throughout the house.Therefore,
parents use the monitor because it is a convenient way to make sure that their
children are safe and behaving while they get other things done.

Big Brother would no doubt argue the
same.As aforementioned, the United
States government conducts and permits monitoring and surveillance in various
forms.Admittedly, much of this
technology deters and prevents crime and misconduct.For example, video and internet
surveillance in the workplace protects employers from liability for the acts of
their employees.[4]Employers can monitor their employees'
internet activity and block curious eyes from obscene websites.[5]Furthermore, surveillance technology
contributes to the collection of evidence to prove whether someone committed a
crime.Therefore, Big Brother could
simply say that surveillance is essential to U.S. citizens' health, safety, and
protection.Moreover, electronic
surveillance, whether by email or video camera, is more accurate and more
convenient than hiring extra security and police officers.Government surveillance provides Big
Brother with a convenient way to make sure its citizens are safe and behaving
while he gets other things done.

Implant Technology:Big Brother Takes a Step Inside

Government and private party use of
surveillance can go frighteningly further.

New technologies could enable
government agencies and private parties to more easily identify persons, track
persons, control others' conduct, and essentially control others' minds.One could accomplish these objectives by
implanting an electronic devicesomewhere
inside an individual's person.This
device could include all of the information on a person's social security card,
driver's license, and other government documents.A single person could manipulate the
implant from thousands of miles away, using a computer that could update the
information.As explained below,
the manufacture and use of this implant model falls within the limits of modern
technology.Taken further, the
device could be surgically implanted in the individual's brain.Here, manipulation of the implant could
let the person behind the computer detect the location of the implanted
individual, determine his present thoughts, and possibly trick his brain into
changing the person's thoughts and conduct.The development of this more advanced
implant model is not likely to come to fruition in the next twenty years, but
may or may not become possible in the more distant future.

Besides the
constitutional issues analyzed below, this technology could facilitate conduct
resulting in distorted and misleading liabilities, especially when used by
private parties.One can recall
contemporary situations where a person manipulates another person to commit a
crime that benefits the former person and devastates the latter, leaving the
latter person with the liability for his or her actions.For example, mind drugs wildly impair
individuals' inhibitions and cognizance, while some forms of religion can
effectuate situations where its obedient members do not realize that their
actions are criminal.Fortunately,
neither the government nor private parties have used actual brain implants to
accomplish these objectives.Nevertheless, advances towards the planning and manufacture of the
physical technology itself have already been in progress.

Right now, developments
towards the proposed technology have begun in three separate forms:
identification chips, tracking chips, and mind control technology.In terms of identification, the FDA has
already approved VeriChip, an implantable identification chip.[6]Established in 1993, Applied Digital
Solutions (ADS) is an advanced digital technology development company that
provides security monitoring systems, security-related data collection,
value-added data intelligence, and complex data delivery systems to everybody
from the government to consumers. ADS promotes VeriChip, one of its
latest inventions, as "a universal means of identification."[8]VeriChip is an energized microchip,
inserted just under the skin on the underside part of an individual's upper arm,
that transmits its information when activated by a VeriChip reader.[9]

ADS also owns Digital
Angel, which specializes in consumer safety and location systems.[10]Technology developed by Digital Angel
can "pinpoint the location of people, pets and objects. In addition, thesesystems enable
consumers and commercial customers to find out quickly if there's a problem so
that immediate action can be taken."[11]In addition to its primarily external
devices, this branch of ADS develops implantable microchips that trace and
monitor pets and livestock.[12]It's only a matter of time until Digital
Angel extends this device to humans, as was VeriChip.

"Imagine a voice in your
head whispering, 'Turn right.' And if you did, the flavor of luxurious dark
chocolate would flood your empty mouth."[13]

Finally, perhaps the most intriguing of these three technologies is the
development of mind control technology.Scientists have already trained rats to respond to signals from a
human-operated, computer command center up to 500 yards away.[14]New York and Pennsylvania universities
have conducted studies whereby a group of scientists led by Sanjiv Talwar
implanted stimulating electrodes into the medial forebrain bundles and
somatosensory cortical whisker representations of five rats.[15]In other words, the scientists implanted
the rats' brains.The rats then
learned the appropriate responses to stimuli sent from the computer command
center to the implanted electrodes.[16]This "virtual cue and virtual reward"
technique is essentially a training or conditioning process.[17]However, if the brain implant technology
were combined with the following conceptualized yet presently unrealized
non-implant technologies, mind control has some real potential.

Recorded patents for
various forms of electronic mind control have existed since 1976.Robert Malech, an inventor from
Plainview, NY invented a device that would sense "brain waves at a position
remote from a subject whereby electromagnetic signals of different frequencies
are simultaneously transmitted to the brain of the subject in which the signals
interfere with one another to yield a waveform which is modulated by the
subject's brain waves."[18]The brain wave activity is then
re-transmitted to a receiver that displays the brain activity.Finally, the waveform can then be used
to "produce a compensating signal which is transmitted back to the brain to
effect a desired change in electrical activity therein."[19]Essentially, this technology allows
anybody that can read the brain wave device to manipulate the person's
brain.Furthermore, this technology
would allow for mind control without an actual physical implant.

In 1995, Hendricus Loos
devised a similar brain-manipulating technology, once again without necessity
for an implant chip.Here a weak,
externally applied magnetic field influences the nervous system.The general public could use this device
as "an aid to relaxation, sleep, or arousal," while, clinical professionals
could use the device to control patients' "tremors, seizures, and emotional
disorders."[20]Advanced further, this technology could
potentially replace the date rape drug and other mind control drugs, all of
which make an actual implant unnecessary for the purposes of mind control.One distinguishing factor between such
non-implant methods and actual brain implants is permanency.Drugs wear off and need to be retaken,
while waveforms and magnetic fields can be evaded.In contrast, brain implants are more
likely to stay put and be effective for a very long time.For example, VeriChip already has an
estimated life expectancy of up to 20 years.[21]Surgical procedures for the removal of
an implant are also expensive, inconvenient, and particularly ineffective if the
individual was implanted at birth and therefore unaware of its presence.

So, what happens when all
of the above technologies combine into one powerful little chip that does it
all?As neurologists become more
acquainted with how the brain codes thought, this single implantable microchip,
inserted directly into the human brain could identify, locate, and even detect
and manipulate brain activity from extremely long distances.Such advances may take a long time to
fully develop, but the far future may present a society where a single
individual at a computer command center may be able to detect the location of
any implanted individual, determine his present thoughts, and possibly trick his
brain into changing its course of thought and conduct.

A Brief Clarification for Those in
Doubt

One may wonder how a
society so strongly in favor of and accustomed to the right to privacy could
ever sit back and let themselves be implanted.However, this is not a
difficult mental exercise when considering what a government will do and what a
society will tolerate under circumstances of intense fear.The September 11th attacks
bring to mind a very recent example where threats to national security resulted
in increased airport security that decreased individuals' privacy.In the aftermath of the attacks,
Congress passed the USA Patriot Act.According to this Act, Congress gives federal officials enhanced
authority to track and intercept telephone, face-to-face, and computer
communications, for law enforcement and intelligence gathering purposes.[22]Finally, as discussed above,
various forms of electronic surveillance have already taken away privacy
protections.There is no reason why
this trend would discontinue.Assuming that widespread use of the technology does come to fruition, the
following section explores both the advantages and disadvantages of this scary,
yet intriguing, technology.

Theoretically, if everybody
knows that they have been implanted at birth, the paranoia would be far too
great for most people to voluntarily commit a crime, much less do something that
would embarrass themselves.One
possible result would be that nobody would commit crimes.The implant would act as a
deterrent.Not only would Big
Brother be watching you; he's watching from inside you - your thoughts, your
whereabouts, where you are headed, maybe even your dreams at night.Of course there will be those
individuals who, cleverly or foolishly depending on one's perspective, will try
to commit crime anyway.In such
instances, brain implant technology could stop the attempted crime before it's
fully committed.

It is important to note
that before brain implant monitoring could ever thwart attempted crimes or act
as an effective deterrent, the system requires someone behind the monitor to
constantly check every individual's conduct.Otherwise, the human monitor would scan
randomly, focusing attention on finding individuals in which information from
other sources reveal a connection with criminal activity in progress.Moreover,
such a system poses the threat of more frequent and more intense monitoring of
particular persons that have caused trouble before.A situation similar to random implant
scanning illustrates how random surveillance fails to be an effective deterrent
in the first place.In the late
1990s, the presence of video cameras in Pennsylvania school buses failed to
deter students' misconduct because the students figured out that the chances of
the tape actually being in the camera of the particular bus they rode in a given
day were slim.[23]Several school buses shared a videotape
and bus drivers periodically passed the tape among themselves.If grade school children can be this
sophisticated, it is likely that adults who have been told that their implants'
feedback is constantly monitored, may be able to figure out that such monitoring
is not very likely.

Cost is another, if not
more important, obstacle to an around-the-clock implant monitoring system.The public school chose to buy only one
tape instead of twenty because buying twenty tapes would have been twenty times
more expensive.On a much grander
scale, wire-tapping is not continuous because the labor costs of cops listening
to phones would be outrageously expensive if enough cops were employed to listen
to all or even most phones around the clock.

However, all the monitoring
body needs to do to solve both continuity and cost problems is to add further
computerized components to the implant reader or monitoring device itself.Computers do not charge labor the same
way individuals do, and would therefore cost a lot less to employ.For example, computers could constantly
scan implant output and alert human monitors via a siren or bell when it
determines that a crime is in progress.There is yet another obstacle here
because a computer may not be able to detect certain human behavior as criminal,
and may accidentally alert the human monitor to behavior that it does not
understand.Here, implanted
individuals could evade detection by the computerized monitor by disguising
their behavior.Advances in
artificial intelligence (AI) could overcome this obstacle.In contrast to a static computer that
scans information and looks for patterns, an AI computer designed for implant
monitoring can be dynamic to the extent that it can sense adaptations in
behavior and detect new forms of criminal conduct designed to trick the
system.As long as the AI computer
does not become advanced enough to realize that it should be getting paid for
its work, cost and continuity obstacles diminish.Granted, there still may be lots of
criminal activity going on at the same time, and the system will need many
computers to detect criminal behavior as well as several humans to respond to
and further investigate what computers detect.Yet, if individuals at this point know
that they are in fact constantly monitored at both a computer level and a human
level, the system is likely to significantly reduce criminal activity.

Perhaps a more interesting
situation involves implant technology in a world where nobody knows that they
have been implanted.Would
the implantees ever find out?What
happens when they do find out?This
situation once again parallels the monitored toddler.In this context, however, the toddler
eventually comes to view the baby monitor as both an affliction and an
advantage.At some point she will
be able to figure out that mommy miraculously enters the room when she cries and when she plays when she is supposed to be asleep.The really clever toddler will figure out that mommy only has this
special power when she brings the white box into the room and places it up high
out of reach.Even those toddlers
who cannot figure this out will try to figure out ways around the system so that
they can play even when they are supposed to be
asleep.In other words, the average
toddler will know that something is up even if the source remains unknown.Consequently, she will play with her
stuffed animals really quietly under the covers, or perhaps cry more often when
she desires more attention.Similarly, the implanted individual would most likely catch on and try to
adjust his behavior accordingly.

Therefore, one also has to
consider that with the rise of this new technology would undoubtedly be a
shortly following, if not simultaneous, counter-technology.In other words, privacy-seeking
individuals would try to come up with some kind of block to both the computer
and the alerted human reading the information from the other end.One possible technique would be to
wear some kind of helmet or take some kind of drug that blocks or scrambles the
outgoing information so that the microchip can no longer be detected.The computer may have been able to see
the implantee take the drug or put on the helmet, but now it has no more
tracking capabilities.Likewise,
implanted individuals may try to build implant transmission barriers out of some
material that the transmitters cannot get through.Once in a room made out of such a
material, someone could surgically remove the implant.Undoubtedly, any of the above incidents
would cause the computer to set off a whole host of alarms and bells, but it
would be too late for the computer and the alerted human monitor to do anything
about it.Nevertheless,
the implantee would have been lucky to get away with any of these activities in
the first place, seeing as an AI computer would have been able to read the
implantee's thoughts in advance and deter him from trying to block outgoing
microchip information.

The very brave implanted
individual might try to remove the implant himself without a barrier.Besides the drawbacks already described
with respect to the drug or helmet method, removal of an implant would be
extremely dangerous.If the implant
were merely lodged in the individual's arm or leg, some people probably wouldn't
mind cutting out the implant or even amputating the entire limb.Privacy's worth at least an arm or a
leg.However, the implant would be
most effectively located in the individual's brain.Privacy will be useless to the implantee
if he cuts off his head.Once
again, a though-reading AI computer could deter such conduct before it happens,
especially if it were programmed to remedy certain situations without having to
alert the human monitor.Unless an
implanted individual lost a limb truly by accident, the AI computer would be
able to determine the individual's intent to remove the implant in his thoughts
even if his outward conduct made it look like he tripped and fell on the axe
that sliced off his upper arm.

Consequently, the implantee
is greatly disadvantaged in the sense that he cannot hide his behavior as well
as the toddler.It would be
difficult for the implantee to control his thoughts to the extent to which he
could disguise a crime in the form of something that does not look like a
crime.With current surveillance
technology, a murderer might be able to escape liability for a videotaped murder
by staging an accident where a jury would determine that the death was actually
caused by accident.[24]Here, the murderer could hit a
pedestrian purposely while making it look like he was swerving because he
thought he saw a cat.[25]However, if the murderer had been
implanted with the identifying, tracking, and mind-reading device, the AI
computer would be able to find out that the murderer intended to kill the
pedestrian by reading his thoughts.The alerted human monitor could then, with the help of the AI computer,
piece together bits of information that had been previously recorded in the
database.For example, a few
keystrokes reveal that the murderer caught his wife with the pedestrian while
viewing his wife's implant output.

As just suggested, private
individuals may have access to their own tracking and mind reading systems.One must keep in mind, that if the
public somehow gains access to this technology, everyone would be able to track
each other.The Feds could be
watching our every moment while we watch them at the same time.This would present a situation similar
to David Brin's Transparent Society,
where advanced video camera technology is accessible to everyone and enables
everybody to watch everybody else.[26]Brin suggests that this would be a
very positive society.Professor
David D. Friedman, however, points out flaws in terms of control of the system
and with respect to misuse of the data.[27]Furthermore, Friedman suggests that
individuals, knowing they may be watched at any moment, can adapt their behavior
by keeping tight control over what they say and how they conduct themselves.[28]It logically follows, therefore, that
the society is still somewhat opaque.In Brin's transparent society, individuals still have a place to hide -
their own minds.In contrast,
individuals living in a society with widespread use of brain implants have
nowhere to hide.Everything is
accessible.The advanced implant
world is much closer to a truly transparent society.[29]Nevertheless, the implant society still
has the problems of control and misuse of data.For example, society wouldn't have to
worry about identity theft as long as nobody tampers with the information in the
database.Today's internet hackers
could be tomorrow's implant database hackers.If control is not an issue and access
remains unregulated, somebody could be watching the person tampering with the
information.It all depends on whom
the human monitors trust.On the
other hand, such an advanced monitoring system could include an equally advanced
security system that allows access though use of biometrics.Control and abuse aside, a truly
transparent society would be a world of utmost truth.

Even in an "unflawed" truly
transparent implant society, most present-day individuals would not be too
impressed with its advantages, and would be quick to point out its
disadvantages.The following
example illustrates one of the least troublesome of situations that could happen
in an implant society:Imagine
being a 19-year-old woman on a date with your current beau.As an evening kiss begins to get more
and more intense, you suddenly hear a buzzing sound and feel yourself pulled
away from the young man you are with.You tell him that you had a wonderful evening and that itπs time you go
home.Confused and bewildered, the
young man doesn't realize that your mother just tracked your whereabouts, saw
what was happening, and sent special waves to the implanted chip in your head
that caused you to mentally and physically respond by returning home.Not only does the 19-year-old
woman's implant result in an uncomfortable degree of lack of privacy, but it
strips her from being able to make a personal choice.As discussed below, the right to
privacy involves an element of control.For example, adults like the 19 year old woman above have a fundamental
right to make personal choices and decisions, albeit the ensuing conduct must be
legal according to the government's laws and regulations.Therefore individual privacy and
personal choice are just two facets of a variety of protections that society
believes fall under the fundamental right to privacy.

The Penumbra
Puzzle:Definitions and
Interpretations of Privacy

Defining the right to privacy is a difficult task.Various scholars have defined privacy in
its broadest terms as informational (or access-control) privacy and control.[30]More specifically, Deckle McLean placed
privacy into four categories:access-control privacy, room to grow privacy, privacy as safety valve,
and privacy as respect.[31]The two types of privacy most relevant
to brain implant technology are access-control and respect privacy.Access-control privacy is essentially
informational privacy, the protection of access to information about a person.[32]Such information encompasses everything
collected in bank records, consumer credit records, employment records, and
medical records to investigation reports, intelligence test scores, and sale of
mailing lists.[33]In contrast, respect privacy involves
events or circumstances that insult the person by bringing shame or
embarrassment to the person.[34]Some threats of access-control privacy
are also threats to respect privacy.[35]For example, bugs and wiretaps both
collect personal information that may cause a person to feel embarrassment.[36]

Interpreted a different way, privacy is a societal license whereby a
person or persons can act legitimately without disclosure and accountability to
others.[37]This license "exempts a category of acts
(including thoughts and emotions) from communal, public, and governmental
scrutiny."[38]Such exemptions include acts inside the
home, bedroom, and bathroom.Even
DotComGuy could escape to his bathroom, the only room without a live
webcamera.Furthermore, privacy
includes an element of control.Control deals with an individual's "decisional realm."[39]Here, the individual is entitled to make
certain choices that the government cannot make for him, such as the choice to
use contraception and the right to bear and beget a child.[40]

Of Ages Past and
Present:The Development of the Constitutional
Right to Privacy

While the United States Supreme Court recognizes a fundamental right to
privacy, this right is not explicitly stated in the Constitution.Rather, the Court has found an implicit
right underlying several amendments of the Bill of Rights.To make matters even more obscure, the
Court explains that it derived a general right to privacy "from 'penumbras' and
'emanations' of the specifically detailed guarantees of the Bill of Rights."[41]The freedom of speech, protection from
unreasonable searches and seizures, and the right to due process, of the First,
Fourth, and, Fifth amendments respectively, are among the specifically detailed
guarantees from which the right of privacy has been derived.[42]

The development of this right has an
engaging, albeit brief, history.The framers of the Constitution embraced an enlightenment philosophy that
formed in reaction to a "prior era of law, based on the combined rule of monarch
and church."[43]Since the ultimate purpose of the law
had been to punish all sin, the church and the state worked closely together to
achieve that end.[44]As a result, "laws governed many aspects
of personal life, including sexuality and personal belief."[45]New thinking about the law that arose
from the enlightenment recognized the rights of the individual and the need for
limits on government authority.[46]Thomas Jefferson and the other framers
of the Constitution expanded on these notions of enlightenment.[47]Nevertheless, "[t]he extrapolation of a
legal right to privacy from common law cases, from newly fashioned arguments and
ultimately from the Constitution took place late in the long development of
legal individual rights, a process that was itself an indication of the growing
value accorded to individual dignity and liberty."[48]The evolution of this late addition to
individual legal rights took place several generations after the United States
had already recognized the freedoms of speech, association, and religion.[49]

In terms of privacy, early United States Supreme Court cases reduced the
value of the Bill of Rights, especially the Fourth Amendment.[50]By 1890, Samuel Warren and Louis
Brandeis believed that the common law of their time still hadn't developed
sufficient privacy rights, so they wrote a law review article in which they
argued that it was time for the law to "grow to meet the demands of society" in
light of changing social circumstances.[51]Warren and Brandeis advocated the
recognition of "the right to be let alone."[52]Subsequent case law agreed, and social
values with respect to privacy began to change.For example, in Boyd v. United
States, the Supreme
Court recognized that the Fourth and Fifth Amendments "apply to all invasions on
the part of the government and its employees of the sanctity of a man's home and
the privacies of life.It is not
the breaking of his doors, and the rummaging of his drawers that constitutes the
essence of the offense; but it is the invasion of his indefeasible right of
personal security, personal liberty and private property."[53]Likewise, the Court in Watkins v.
Unites States said
that "Congressional power to expose 'cannot be inflated into a general power to
expose where the predominant result can only be an invasion of the private
rights of the individuals.'"[54]

From the "1950s
to the 1970s, the Supreme Court announced the premise that some decisions are so
personal that a constitutional standard of privacy requires that they be
reserved to the individual."[55]In 1965, the Court in Griswold v.
Connecticut held
"that a privacy right protecting the body and body-related matters from
government invasion was implied by the First, Third, Fourth, Fifth, and Ninth
Amendment."[56]The Court really didn't have much of a
choice.The public knew where its
policy was going, common law just had to catch up."[T]he liberal era of the 1960s and
1970s included demands by many groups that the government and institutions of
society learn to respect personal decisions and make room for greater social
diversity."[57]While many individuals encouraged the
court's expansion of rights and private choice, others concluded that the
"corollary social responsibilities and commitments to the common good were
neglected, with negative consequences such as the deterioration of public safety
and public health."[58]The latter individuals viewed the
"American society after 1960 [as having] entered an era of growing individualism and neglect of the common good; expressive individualism (of the counter-cultural variety)
was followed by instrumental individualism..."[59]

A World of
Remote-Controlled Rats and Toddlers:The Inadequacy of
Current Law

At present, US courts
continue to confirm public policy in favor of individual privacy rights.In the advanced implant world, however,
not only will current privacy laws be irrelevant, but individuals will have to
either develop new notions of privacy or give up the right altogether.The framers of the Constitution could
not have foreseen technologies as advanced as the proposed brain implant, much
less the impact this technology would have on the Bill of Rights. As
aforementioned, so many amendments are involved in the right to privacy that
brain implant technology would render substantial portions of the Bill of Rights
obsolete.

Before the above situation
can be considered, however, the existence of implanted individuals in a society
with privacy rights would have to exist simultaneously.To get to this point, one would have to
assume that citizens would allow the government to implant them in the first
place, or else the government would have to force implant procedures upon
them.As above-mentioned, it would
take an immense national security crisis for this situation to happen.Another possibility would be for the
government to start implanting babies in hospitals shortly after birth.Here, the government would need to
consider that some mothers, particularly Amish women, choose to have their
children by natural birth in their own homes.This would present obvious regulation
problems.Finally, the government
could implement the patented external technologies that have not yet been
realized.Despite the method or
methods are followed, it is possible that at some point all or most citizens
would either be implanted, monitored by use of external technologies, or perhaps
even both.

Aside from the option of
obtaining citizenship elsewhere, future citizens may decide to redraft several
amendments of the Bill of Rights.It is difficult to comprehend what kind of views and policies this kind
of society would hold dear, but perhaps future citizens could find some way of
incorporating the right to privacy.For example, the government could agree to regulate the abuse of implant
technology.Laws could impose
strict penalties on intruders and invasive public authorities.[60]Along the same vein,
stalking victims could bring suit against their stalkers.However, stalking laws may also have to
change.A victim from today's
society could assert invasion of privacy by showing that (1) "the stalker
intentionally interfered with his or her interest in solitude or seclusion in a
manner that would be substantially offensive or objectionable to a reasonable
person," and (2) that the victim "was entitled to privacy at the time and place
where the intrusion occurred."[61]If these requirements persist, the
victim's proof burden would depend on how an implant society defines
"privacy."It is arguable that an
implantee has no expectation of privacy at any time or any place.

Moreover, an implanted
individual would never really be alone.Nevertheless, a distinction could be made between ordinary or commonplace
implant surveillance and substantially offensive or objectionable implant
surveillance.For example,
monitoring a close family member's voyage across dangerous waters could be
viewed as a justifiable surveillance, while reading an individual's mind for the
purposes of torture or torment would be offensive or objectionable.The victim, of course, would first have
to figure out that an intrusion is occurring and then face the task of
identifying the intruder.Fortunately for the victim, the AI computer may have viewed the stalker
intruding on the victim.

As discussed earlier, the
AI computer would conduct most of the monitoring.As a result, many of the implant
monitoring regulations would need to address how the computer monitors
activity.For example, the implant
society would need to enact privacy laws that specify how the computers must be
programmed, the narrow circumstances under which it can alert the human monitor,
and perhaps even more restricted situations where the computer itself can arrest
or even change a citizen's activity.In addition to regulating the computer's monitoring, the government would
have to enforce rules concerning who can respond to the situations that causes
the computer's alarm to go off, and who can simply read the implant monitoring
device for any reason at all.Here,
there could be limits as to the number of people employed by the monitoring
agency, specific procedures humans can take while monitoring, and specific
liabilities for monitoring actions that cause harm to the implanted
individuals.

Another way to preserve
some level of privacy would be for the government to mandate whomever controls
the database connected to particular person's implant to send feedback to any
individual whose private files, conduct, or thoughts have been looked into.[62]Perhaps an automatic wave could be sent
back to the individual's implant and produce a buzzing sensation or beeping
sound so as to let the implantee know that his or her implant has been
activated.This might be difficult
to enforce if the AI computer is constantly monitoring because it would send a
constant alarm to the individual.Nevertheless, this method may be useful when a human is using the implant
reader to collect information.

The legal system may also
need to rethink the collection and admission of evidence.At present, a criminal defendant may
file a motion to compel the prosecution to disclose all records of electronic
surveillance that occurred at the defendant's home, place of business, and other
related premises.[63]Criminal defendants may also request an
evidentiary hearing to determine whether the government received such records
via illegal surveillance and ask that any evidence derived from an invasion of
the defendant's privacy rights be suppressed.[64]Here, an implant society would need to
redefine "intrusion" and "privacy."As a result, illegal surveillance may have a very different meaning in
such a society.

As far as giving up the right altogether, one could imagine a population
generations from now where high school students look at their history books in
awe of a concept of privacy that they cannot fully understand.Depending on the social policies of the
time, these students may even look upon the right to privacy in disgust.Such students may raise questions and
concerns such as:"How dare those
uncivilized people of the past be so selfish as to put the rest of society at
such risks?""Those poor lonely
people!If they only would have had
implants, they would have been able to better connect with their neighbors.Unlike us, they were never able to know
anyone else as well as they know themselves."Granted, not all third or fourth
generation implantees will feel this way, but it is likely that the majority of
implantees may come to regard their situation as advantageous.

Some Final Thoughts Before the
Computer Alerts the Human Monitor on Duty

With or without the right
to privacy, in implant world would, and perhaps will be, a very interesting
place.This technology would bring
about a multitude of changes in personal relationships, public policies, values,
and other aspects of day to day life not addressed here.As fun as it might be to access someone
else's mind and control his or her thoughts from thousands of miles away, such a
privilege may or may not be worth the price of deflated or abolished privacy
rights.It is difficult to
determine for sure whether or not the right to privacy will still exist in some
form, but it is certain that implanted individuals would not enjoy identical
protections under the same laws that present-day United States take for
granted.Friedman notes that in a
world where every place is public, society will have actually "stepped back at
least several centuries, arguably several millennia."[65]Considering the history of the
development of the right to privacy, it is strange to think about how advanced
implant technology could propel a society ahead and push it behind at the same
time.

[6].Julia Scheeres, ID Chipπs Controversial Approval, Wired
News (Oct. 23, 2002) at
www.wired.com/news/politics/0,1283,55952,00.html; Note that FDAπs approval does
not allow ADS to market VeriChip for medical purposes.Right now it can only be used as a
security or identification device. Weekend All Things Considered:Implantable Microchip Identification May
Soon be Available for People, as it is Now for Pets (NPR radio broadcast, Nov. 16,
2002).